Legal enforcement of morality.

• Author: Greenawalt, Kent

In modern Western political and legal thought, the subject of legal enforcement of morality is narrower than the literal coverage of those terms. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Disagreement arises only when the law enforces aspects of morality that do not involve protecting others from fairly direct harms. More precisely, people raise questions about legal requirements (1) to perform acts that benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from acts that cause harm to themselves, (4) to refrain from acts that offend others, and (5) to refrain from acts that others believe are immoral. Answers to some of these questions may be affected by whether the relevant moral judgments are essentially religious. Subsidiary questions concern the appropriateness of taxes adopted to discourage behavior the government should not forbid outright and the appropriateness of prohibitions on others profiting from such behavior (as when someone lives off the earnings of prostitutes).

Since it is rare that one argument for restricting behavior will stand by itself, with no other arguments supporting restriction, a conclusion about a single theoretical issue will not usually yield a decisive answer as to whether any particular behavior should remain free. However, a conclusion that some argument for restraint is unwarranted can significantly affect the overall power of the totality of arguments. For example, if someone concludes that the claimed immorality of homosexual behavior is not a proper basis on which to forbid it, this will substantially affect the overall strength of reasons in favor of prohibition.

A final subtlety concerns two perspectives from which to consider the subject of the legal enforcement of morality. One perspective is that of legislative philosophy: "Should the legislature enforce morality by law?" The second perspective is that of a court in a constitutional regime: "Should enforcement of morality count as a legitimate basis for legislation that is challenged as invalid?" One might think that legislatures should not rely upon certain reasons, but that courts should accept them as adequate if legislatures do rely upon them. In addition, reason might be acceptable for most legislation, but not, say, for legislation that infringes on liberty of expression. Finally, a reason might be acceptable as a matter of general philosophy of government, but not in a constitutional regime that mandates the separation of church and state.

This Article explains these major questions in turn, but first addresses the self-evident point that legal enforcement of morality is usually appropriate.

1. Legal Enforcement of Moral Norms Against Causing Harm

   Any comprehensive morality includes restraints against harming other people. Murder, assault, theft, and fraud are immoral. In any society sufficiently developed to have a law distinguishable from its social morality, this law will forbid murder, assault, theft, and some forms of fraud. As H.L.A. Hart pointed out, law and social morality will constrain much of the same behavior.(1) This does not mean, of course, that the law will enforce every aspect of morality that concerns preventing harm to others. Law is a crude instrument, requiring findings of uncertain facts, with rules backed by a limited arsenal of coercive sanctions. Many immoral acts that hurt others are unregulated by the law. Nevertheless, no one doubts that, in principle, protecting others from harm is an appropriate task for legal rules. Exactly what protection these rules should extend is a matter of prudential judgment or some kind of balancing of morally relevant factors. These plain truths may obscure some complexities that one must consider when asking if legal rules should prohibit acts on other grounds.

   The idea of harm to someone else must be clarified and developed. If every unpleasant feeling or negative thought qualified as a harm, an act might be prohibited because it made some people envious or disturbed them. With such an expansive notion of harm, prevention of harm to others would justify enforcement of all aspects of morality.(2) Inquiries into whether legal rules should prevent people from harming themselves (or enforce morality as such) would then have far less practical significance. In his nuanced and exhaustive treatment of this subject, Joel Feinberg suggests that, for a principle of preventing harms to others, the "harms" that warrant consideration are "setbacks to interests" that are, in some way, wrong.(3) Thus, because no wrong has occurred when an actress is fairly chosen for an important role, that choice does not harm an envious rival who loses the opportunity to earn $1,000,000. Exactly what qualify as harms to others is of central importance when examining the bases for contested legal regulations.

   One significant point is that the prevention of harm to others includes prevention of harm that is most directly inflicted on people as a collective. Thus, the "harm principle" generates no difficulty for a law against spying on the government. What harms qualify as collective harms, however, is an issue to which it is necessary to return.

   Two related questions regarding harm to others affect much of the rest of this essay. Their explication here will clarify what follows: (1) Is it possible to make decisions about legal regulation without any moral judgment whatsoever? (2) if moral judgment is necessary in deciding what qualifies as relevant harm, does it follow that general enforcement of morality is appropriate?

   In answer to the first question, a distinction between wrongful and nonwrongful harms does involve moral judgment, for example, the judgment that suffering envy at the deserved success of others is not a relevant harm. Is this sort of judgment avoidable? It is possible to imagine a legal system with regulations based on an assessment of negative consequences that considers only overall individual preferences, happiness, or ability to pay, relying on no (other) moral judgments ("no other," because deciding that only preferences, happiness, or ability to pay should be considered is, itself, a moral judgment). If someone conceives the grounds for legal regulation as restricted in this way, would the grounds for legal regulation seem more limited than the grounds for moral judgments in general? This depends. "Average happiness utilitarians" base all moral judgments on actual and prospective happiness. It would be misleading, however, to describe their position as one in which legal regulation is determined without moral judgment, because they would use the same kinds of assessments to make all correct moral judgments as they use to determine appropriate legal restrictions. Suppose, by contrast, someone thinks that sound morality includes many grounds for judgment, but that almost all of these grounds are irrelevant for legal regulation. This position might be phrased as one in which legal regulation can be determined without moral judgment. But it is hard to understand how someone could defend the substance of this position. Why should moral distinctions that govern the nonlegal evaluation of acts become irrelevant for evaluating legal rules? The answer is that they should not. Thus, the principles guiding legal regulation must include moral judgments.

   If moral judgment affects determinations of harm, it does not necessarily follow that legal rules appropriately enforce morality in general. It may be that for reasons of moral and political philosophy, harm to others (determined partly by moral judgment) should be an appropriate basis for legal regulation, whereas moral evils that do not involve harm to others should remain free of legal regulation. The next sections examine whether the law should enforce morality in various senses.

2. Legal Requirements to Perform Acts that Benefit Others

   Should people have a legal duty to rescue others? In most states of the United States and in many other countries, people do not have such a duty. A person who walks by a shallow pool in which a baby is drowning, fully aware that saving the baby would cause no more harm than wet feet, can keep on walking without criminal or civil consequence. On occasion, people have defended this legal principle...